Legal Update. Fire Districts Association of California (FDAC) 2017 Annual Conference April 5, 2017

Transcription

1 Legal Update Fire Districts Association of California (FDAC) 2017 Annual Conference April 5, 2017 Presented by: Geoffrey S. Sheldon and Morin I. Jacob

2 Legislation

3 SB 1221 Behavioral Health Training for Firefighters POST Currently Provides Training On Evidence- Based Behavioral Health for Covered Peace Officers Requires Additional Training in Evidence-Based Behavioral Health So That Law Enforcement Officers Can Recognize, Deescalate, and Appropriately Respond to Persons with Mental Illness, Intellectual Disability, or Substance Use Disorders This Law Authorizes the State Fire Marshall to Take this Training and Revise it to Apply to Firefighters 3

4 AB 1676 and SB 1063 Expand Labor Code to Prohibit Wage Differentials Base on Race and Ethnicity These bills amend LC and LC Before these bills passed, LC prohibited ER from paying EEs different wage rates based on SEX/GENDER for substantially similar work. (2016 s SB 358.) Only exceptions: Seniority system Merit system System based on quantity or quality of product Other bona fide factors other than sex Now must assure not paying different wage rates based on RACE and ETHINICITY for substantially similar work. Now - prior salary history cannot by itself justify disparity in compensation with other EEs based on sex, race or ethnicity. 4

5 SB 1001 Prohibits ERs from Requesting Documents Relating to Immigration Adds LC Federal Immigration law prohibits bringing in and harboring of aliens, including do so in the context of employment. Federal Immigration law also requires ERs to verify the immigration status of both Applicants and EEs via I-9 form. SB 1001 purports to make it unlawful for an ER to take certain actions that go above and beyond federal law s verification requirements, including: Requesting documents that are not specifically permitted to be requested under Federal Immigration law. Refuse to honor documents that on their face reasonably appear to be genuine. Refuse to honor documents OR work authorization based upon the status that accompanies the authorization to work. Attempt to investigate or re-verify an incumbent EE s authorization to work. 5

6 AB Local Agency Officials Harassment Training Requires Local Agency Officials to Undergo Two Hours of Sexual Harassment Training Every Two Years and Initially Within First Six Months of Taking Office or Commencing Employment. Agencies Must Maintain Records Establishing that Local Agency Officials Received the Harassment Training Completion of AB 1825 Harassment Training Should Satisfy This Requirement Local Agency Officials Include Any Legislative Body Members and Elected Local Agency Officials of an Agency 6

7 AB 1843 No Inquiry Into Juvenile Offense History Employers Are Now Prohibited Into Inquiring About an Applicant or Employee s Juvenile Offender History. Exceptions: Applicants for Peace Officer or Other Criminal Justice Agency Positions. Health Facilities Can Inquire with Applicants About Sex Offender Registration and Controlled Substances Offender Registration for Job Positions With Regular Access to Patients or Drugs/Medication Unless Offense Has Been Sealed by Juvenile Court. 7 7

8 AB 2337 Notice to Employees of Rights as a Victim of Domestic Violence, Stalking, and Sexual Assault Requires Employers to Provide a Written Notice to Employees of their Rights as a Victim of Domestic Violence, Stalking, and Sexual Assault. The Labor Commissioner has Until July 1, 2017 to Develop a Written Notice that Employers Can Use to Satisfy this Requirement. Employers Can Also Use Their Own Notice So Long as it is Substantially Similar to the Labor Commissioner s Notice Not Effective Until Labor Commissioner Issues Written Notice. 8

9 AB 1732 Single Occupancy Restrooms in Gov t Buildings and Places of Public Accommodation Must be Available to All Genders Adds Art. 5 (commencing with ) to Chapter 2 of Part 15 of Division 104 of Health and Safety Code. Beginning 3/1/17, all single user restrooms in public buildings or on private property that are places of public accommodation to be identified as all gender facilities. Subject to inspection by Code Enforcement Officers, Building Inspectors, etc. 9 9

10 Case Law

11 POBR - Choice of Representative Subject Officer Was Not Entitled to be Represented by a Fellow Witness to the Investigation Barcelona v. State of California Department of Justice (E.D. Cal.) (2016 WL ) 11 11

12 POBR Adverse Comments County Violated POBR by Failing to Disclose Supervisors Memoranda Regarding Employee s Psychological Condition and Fitness for Duty White v. County of Los Angeles (2016 WL ) 12 12

13 POBR Hearing Procedures City Abused Discretion and Failed to Comply with MOU by Rejecting the Hearing Officer s Unsupported Recommendation and Adopting the Original Discipline City of Los Angeles v. Henderson (2016 WL ) 13 13

14 POBR Notice of Investigation Officers were Provided with Sufficient Notice of Investigation Containing a General Description of the Allegations Santa Ana Police Officers Association v. City of Santa (C.D. Cal.) (2016 WL ) 14 14

15 FBOR Protections on Duty Firefighter Engaged in Performance of Duties When Alleged Misconduct Occurred Was Entitled to FBOR Rights Seibert v. City of San Jose (2016) 247 Cal.App.4th

16 FBOR Punitive Action Firefighters were not Subject to Punitive Action Under FBOR by Being Transferred out of an Assignment for Failure to Pass a Psychological Exam Requirement Leonard v. City of Los Angeles (9th Cir.) (2016 WL )

17 POBR - Punitive Actions Removal of a Police Officer from Collateral Duties of SWAT, Honor Guard and Field Training Officer Was Not Punitive Action Sufficient to Trigger POBR Rights Perez v. City of Westminster (2016) 5 Cal.App.5th

18 FBOR Appeal Procedures City s Method of Providing an Administrative Appeal Through its Civil Service Commission was Functionally Equivalent to Administrative Requirements Under FBOR LeRoy v. City of San Jose (2016 WL ) 18 18

19 FBOR Individual Liability FBOR Bars Individual Liability Clark v. California Department of Forestry (N.D. Cal.) (2016 WL ) 19 19

20 Disability Discrimination Question of Fact Whether an Employee Who Has to Care for a Disabled Family Member Is Protected Under FEHA for Associational Disability Discrimination Castro-Ramirez v. Dependable Highway Express (2016) 2 Cal.App.5th

21 Free Speech Employers Liable for Disciplining Employee Based Upon Mistaken Belief That Employee Exercised Right of Free Expression Heffernan v. City of Paterson (2016) 136 S.Ct

22 Free Speech A City Employee Who Is Fired After Announcing That He Will Testify in a Co- Employee s Lawsuit Against the City Can Sue for 1 st Amendment Retaliation Stillwell V. City of Williams, AZ (9 th Cir. 2016) 831 F. 3d

23 Public Records Act California Supreme Court unanimously decides s or text messages about local agency business, sent, stored or received in a personal account or private electronic device are subject to disclosure under the Public Records Act City of San Jose v. Superior Court (2017 WL ) 23 23

24 Questions? Geoffrey S. Sheldon Partner Los Angeles Office Morin I. Jacob Partner San Francisco Office